Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Complainant hit twice by motor vehicle driven by appellant - Appellant convicted of assault and doing grievous bodily harm - Accident and criminal negligence both left to jury - Whether verdicts uncertain

Words and phrases - "Duplicity" - "Uncertainty" - "Unlawful" - Meaning of "unlawfully" in "unlawfully does grievous bodily harm"

Criminal law and procedure - s 266 Criminal Code - Duty of persons in charge of dangerous things - Whether s 266 creates separate offence - Whether indictment defective - No requirement that s 266 appear on indictment

Criminal law - s 266 Criminal Code - Duty of persons in charge of dangerous things - Whether applicable to assault charge

Criminal law - Inference direction - Whether trial Judge erred in directing that no inference could be drawn from lack of evidence of broken indicator glass - Turns on own facts

Criminal Code (WA) s 23, s 222, s 223, s 266, s 297, s 313

Criminal Procedure Act 2004 (WA), s 85(2)

Beach (1994) 75 A Crim R 447

Bounds v The Queen [2006] HCA 39

Brown (1984) 79 Cr App R 115

Callaghan v The Queen [1952] HCA 55; (1952) 87 CLR 115

Clarke v Johnstone [1986] VicRp 64; [1986] VR 643

Dally [2000] NSWCCA 162; (2000) 115 A Crim R 582

Evgeniou v The Queen (1964) 37 ALJR 508

Georgiadis v The Queen [2002] TASSC 58; (2002) 11 Tas R 137

Griffiths v The Queen [1994] HCA 55; (1994) 69 ALJR 77

Houghton v The Queen [2004] WASCA 20; (2004) 28 WAR 399

Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467

Kuczynski v The Queen (1989) 2 WAR 316

R v Cramp [1999] NSWCCA 324; (1999) 30 MVR 9

R v Franco ( [2003] SASC 140; 2003) 139 A Crim R 228

R v Glattback [2004] QCA 356

R v Leivers & Ballinger [1998] QCA 99; [1999] 1 Qd R 649

R v Spathis [2001] NSWCCA 476

S v The Queen [1989] HCA 66; (1989) 168 CLR 266

Tucker v Noblet (1924) SASR 326

Walsh [2002] VSCA 98; (2002) 131 A Crim R 299

Walsh v Tattersall (1996) 188 CLR 77

Bardsley v The Queen [2004] WASCA 251; (2004) 29 WAR 338

Berlyn v Brouskos [2002] VSC 377; (2002) 134 A Crim R 111

Buck v The Queen, unreported; CCA SCt of WA; Library No 4773; 22 December 1982

Chew v The Queen (1991) 4 WAR 21

Clark v Ryan [1960] HCA 42; (1960) 103 CLR 486

Gorman (1991) 56 A Crim R 406

Jones v The Queen [1980] WAR 203

Kaighin v The Queen (1990) 1 WAR 390

Lederer v Hitchins [1961] WAR 99

Mallard v The Queen [2005] HCA 68; (2005) 80 ALJR 160

Webb v The Queen (1994) 13 WAR 257

Willers v The Queen (1995) 125 FLR 221

1 MARTIN CJ: In my opinion this appeal must be dismissed for the reasons given by Pullin JA, which I have had the advantage of reading in draft and with which I agree.

2 ROBERTS-SMITH JA: I agree generally with the reasons and conclusions of Pullin JA. However, I wish to make the following additional remarks.

3 In its terms, ground 1 claims that both convictions are bad for uncertainty "in that" (that is "because") they are alternative verdicts. I take that to mean they are bad for uncertainty because they are convictions of alterative offences to those charged on the indictment. Counsel for the appellant contended that they ought to have been set out on the indictment.

4 An accused may be convicted of an alternative offence where that is charged on the indictment as an alternative to another charge; s 10A(1)(a) Criminal Code. The section came into operation on 31 May 2005 and so applied at the time of trial, having been inserted by the Criminal Law Amendment (Simple Offences) Act 2004 to replace the previous s 594 of the Code. It will be necessary to charge an alternative offence on the indictment where the prosecution case could support a conviction upon it, but the offence is not a statutory alternative to the primary offence charged.

5 An accused may be convicted of any offence which is a statutory alternative (s 10A(1)(b) and s 10B of the Code). In that circumstance, the alternative is available as a matter of statutory law and does not have to be separately charged.

6 As Pullin JA points out, verdicts on the alternative offences of which the appellant was convicted, were open under s 317A and s 294 of the Code.

7 Given these statutory provisions, the proposition asserted in the terms of this ground is simply untenable.

8 However, the way in which the ground was argued was different. That came down to a contention that some members of the jury could have reached their verdict by one evidentiary or legal route, and other members may have reached their's by another, and as a consequence the verdict in each instance was uncertain.

9 It is frequently the case that there is more than one basis on which a jury could arrive at a verdict of guilty. Whether they should be directed that they may do so depends on whether the alternative bases of responsibility "involve materially different issues or consequences": R v Leivers & Ballinger [1998] QCA 99; [1999] 1 Qd R 649, 662.

10 There the prosecution based its case against the appellants on s 7(1)(c) and s 8 of the Criminal Code (Qld) as alternatives. Although the jury would be required to make different findings in respect of each provision, the same activities by each appellant were in essence relied on as a foundation for liability under each. It was held to be proper for the trial judge in that circumstance to instruct the jury that they were entitled to reach the same conclusion by different routes.

11 R v Cramp [1999] NSWCCA 324; (1999) 30 MVR 9, is a case which is directly in point to the argument being advanced under ground 1. There the New South Wales Court of Criminal Appeal upheld a manslaughter conviction which might have been based on gross negligence, or by an unlawful and dangerous act. The Crown case was that on the evidence the jury could return a verdict of manslaughter by concluding that the deceased's death resulted either from the appellant's unlawful and dangerous act, or from his gross negligence, or both.

12 The grounds of appeal asserted that the trial miscarried because the Crown relied on the two alternative bases of guilt, because his Honour failed to instruct the jury that they had to be unanimous about one basis or the other, because his Honour's directions must have confused the jury and because the appellant ought not to have been convicted since the jury were not unanimous about the appellant's guilt on either basis (as appeared from answers given by the jury to questions posed by the Judge).

13 At the outset of that appeal it was determined that no error arose in the summing-up of the trial Judge. Early in his summing-up he had directed (at [18]):

"I have told you that your verdict must be unanimous and in fact the old question that was asked of a jury after the verdict was taken from the foreman was 'Is that the verdict of you all?' and the rest of the jurors would sort of remain silent indicating that is [sic] was their verdict, but that is where the unanimity ends with the verdict. As long as you are unanimous about your verdict, your path to the verdict may differ, your paths to the verdict may differ. This case is put in several ways to you and if you arrive at a verdict, as long as it is the same verdict, how each of your got to that verdict, provided you do it according to the directions that I have given to you does not matter, I hope that is understood. The way to the verdict does not matter as long as the verdict itself is unanimous.

One of you may find that the accused is guilty on the basis of gross negligence and indeed even within that category or may find different acts to be more convincing than others. I hope it is clear what I mean, if there is any doubt about what I mean you can come back and ask me, I will try and explain it in more depth but I think it may be clear to you that what has to be unanimous is not your whole reasoning process but your conclusion, your verdict has to be unanimous."

14 The Court held that the jury was not obliged to adopt a uniform basis on which to reach its verdict of guilty. A distinction was drawn between "alternative factual bases of liability and alternative legal formulations of liability based on the same or substantially the same facts": Cramp, [65]. At [66]:

"The jury were obliged to consider the whole of the conduct of the appellant for the purpose of considering whether he caused the death of the deceased by his unlawful and dangerous act or by his gross negligence. Each process of reasoning invited by the Crown rested on substantially the same factual basis."

15 During the course of their judgment their Honours reviewed a wide range of cases decided in Australia and other common law jurisdictions. They referred to the opinion of Professor Sir John Smith who, in his paper "Satisfying the Jury" [1988] Crim LR 335 at 344, proposes a principle of general application that when the prosecution allege more than one factual basis for the crime charged and it is not possible to say "if it was not the one, then it must have been the other'' the jury should always be directed that they must all be satisfied as to the one basis or all satisfied as to the other, or both. On this proposition their Honours felt that there appeared to be no difficulty in applying the principle to cases where the accused must have been principal or accessory but where it is impossible to say which. They gave examples of such cases in several jurisdictions ([33] - [43]). They distinguished those cases from such situations where the difficulty has not been in distinguishing whether the accused was the principal or an accessory, for example where the prosecution have alleged that the accused committed a number of discrete acts, any of which would entitle the jury to convict, and invitation to convict on all or any of them ([44] - [57]).

16 At [58] they indicated that there is strong authority for regarding as good a conviction (particularly for manslaughter), which might have been reached by alternative processes of reasoning even where the jury have not been instructed that they must all agree about one or other of them:

"[59] In Isaacs v R (1997) 41 NSWLR 374 at 379 the Court of Criminal Appeal of this state enumerated reasons why, when a verdict of guilty has been returned and there are alternative bases for arriving at it, the jury should not in an ordinary case be asked about the basis for the verdict. Acknowledging the possibility of a good verdict where the jurors are not unanimous as to the alternative grounds upon which it might be reached, the court said this at 379:

'Second, the jury's response to any such question may be unclear. A response that indicated two grounds of decision might, depending upon the circumstances, indicate that the jury were unanimous on both grounds, or that some jurors adopted one ground, and the remainder adopted another. The response may create more uncertainty than previously existed'.

[60] The court noted the opinion to the same effect of Roden J in Petroff v R (1980) 2 A Crim R 101 at 134-9.

[61] The statement previously referred to in Clarke v R has been applied in Levidis v R [1991] VicRp 57; (1990) 51 A Crim R 216; Eades v R (1991) 57 A Crim R 151 at 156: see also R v Muto [1996] VicRp 21; [1996] 1 VR 336 at 339.

[62] In Alternative Elements and Included Offences [1984] Cambridge Law Journal 290, Professor Glanville Williams says at 291:

'Alternative elements may be called jurors' alternatives; they do not present a choice between offences, for the jury as a whole, but relate to the ingredients of the offence. Jurors' alternatives occur when jurors are presented with different paths by which they may collectively arrive at a single verdict. The most important example is manslaughter. Although theoretically a single offence carrying a single conviction, manslaughter can be committed in a variety of ways, and the jury need not, it seems, agree on any particular way. Six jurors may think the case is one of manslaughter by provocation and six may think that it is manslaughter by reason of diminished responsibility, but the conviction of manslaughter will be good.'

[63] These cases do not establish the principle for which the appellant contends. It states the relevant principle too widely to say that jurors who are trying a case of alleged manslaughter must be directed that, insofar as the Crown case relies upon suggested alternative bases for a finding of guilt, the jurors must be unanimous as to some one or more of the suggested bases before they can return a verdict of guilt based upon that basis or those bases. The relevant principle is still too widely stated even if there be added a rider that such unanimity is not required in a case where the accused must be liable on one or other of the suggested alternative bases, and it is impossible to say which."

17 Clearly a distinction is to be made between alternative factual bases of liability and alternative legal formulations of liability based on the same or substantially the same facts. The cases to which their Honours referred to (at [33] - [57]) speak about the former. This appeal was about the latter.

18 The distinction seems clear enough when one considers decisions such as KBT v The Queen (1997) 191 CLR 417, in which an appeal was upheld because the jury had not been directed that it must agree as to the acts upon which a conviction of maintaining an unlawful sexual relationship was based. Section 229B(1) of the Code created an offence of maintaining an unlawful relationship which required for conviction proof that the offender had committed an offence of a sexual nature with a child on three or more occasions. That finding as to three acts was an essential element of the offence, requiring the jury to reach a unanimous conclusion as to at least three specific acts out of those the subject of evidence.

19 Similarly, in Brown (1984) 79 Cr App R 115, the English Court of Appeal held that the jury had to be unanimous as to the false, misleading or deceptive character of at least one of several statements in order to convict the appellant of the offence of inducing another to enter into an agreement, by a statement known to be false, misleading or deceptive. Similar reasoning is evident in Beach (1994) 75 A Crim R 447, in which the Victorian Court of Criminal Appeal was dealing with a conviction on a charge under s 318 of the Crimes Act 1958 (Vic) that the applicant caused the death of the deceased by culpable driving in that he drove (a) negligently or (b) whilst under the influence of alcohol to such an extent as to be incapable of having proper control of his motor vehicle. The applicant was also convicted on a second count of negligently causing serious injury by the same driving.

20 The application for leave to appeal was agued on the basis the trial Judge erred in directing the jury they could unanimously find the applicant guilty of culpable driving if some were satisfied he was negligent as defined in the Crimes Act, and others that he was under the influence of alcohol to the required degree.

21 Dismissing the application, the Court held that where, by their verdict on the second count, it could be seen all members of the jury were satisfied the applicant's conduct was encompassed by at least one of the four categories specified in s 318 (and alleged in the presentment), the verdict was sustainable. The Court went on to observe (obiter) that a very different situation would exist where no such conclusion could be reached - in that circumstance a guilty verdict could not be sustained. That observation turned entirely upon construction of the particular statutory provision, which created very different categories of culpable driving and which required the category, relied upon by the prosecution, to be stated in the presentment. The Court pointed out (at 453) that rendering different forms of conduct equally blameworthy did not make them the same conduct, or even necessarily alternative forms of the same conduct. Their Honours added (at 453):

" It is important to note, in this context, that the legislature has required that the form of culpability alleged be specified. As a matter of statutory interpretation, it would be reasonable to conclude that Parliament intended that an accused person is not only entitled to know upon which basis or bases his alleged culpability is claimed to have arisen, but also and by implication, where guilt is denied, to a jury verdict on the basis of at least one of the categories so designated.

We consider that the legislature cannot have intended the injustice involved in the acceptance of a verdict of guilt of an accused of the commission of a serious criminal offence, based upon quite disparate findings relating to the very foundations upon which the verdict rests."

22 Beach, accordingly, is wholly distinguishable from the present case and does not detract from the principle articulated in Cramp.

23 The distinctions between essential and non-essential elements in an offence, and alternative bases of criminal liability not involving "materially different issues or consequences", illustrated by the cases above are not so clear when it comes to the question of manslaughter verdicts which may be based on an absence of finding of a specific intent to kill or do grievous bodily harm, or, alternatively, on a conclusion that although intent is established, the prosecution has not excluded provocation. In practice, however, it has generally not been considered necessary that the jury be required to reach unanimity of approach before convicting of manslaughter. The existence of such a practice in Victoria (Clarke v Johnstone [1986] VicRp 64; [1986] VR 643, 661) and New South Wales was discussed in Dally [2000] NSWCCA 162; (2000) 115 A Crim R 582.

24 In Dally, the rationale is expressed in terms of practicality, rather than involving any attempt to distinguish between essential and non-essential elements or materially different issues or consequences.

25 Counsel for the appellant in that case contended that the trial Judge erred in directing the jury as to unanimity in respect of manslaughter. The trial Judge had directed "[i]t is necessary for your verdict to be unanimous, but it is not necessary that you all arrive at the same result by the same approach or for the same reasons". The judge had explained to the jury that if they were to find the accused not guilty of murder and some of them thought that he was guilty of manslaughter on Approach A (unlawful and dangerous act) and some thought he was guilty on Approach B (provocation) that would not matter. Their unanimous verdict would be guilty of manslaughter. The judge explained said that any of the possible verdicts could be arrived at for any amount of different reasons provided that the verdict, whatever it be, was unanimous.

26 The appellant submitted that these directions were wrong. There was a fundamental difference between the two types of manslaughter, no specific intent being required in the doing of the unlawful and dangerous act. For members of a jury to be permitted to arrive at their verdict of manslaughter when some found (or may have found) the requisite intent and provocation and others were not satisfied (or may not have been satisfied) as to intent but found an unlawful and dangerous act, involved

contradictory reasoning and findings on important elements. The alternate bases mentioned involve materially different issues and consequences, and lack of unanimity on these offended concepts of justice.

27 Smart AJ (with whom Sully J and Carruthers AJ agreed) reviewed the relevant authorities, many of those previously reviewed in Cramp, and penultimately turned to that case, before concluding [at [68] - [69]) that:

"... it is sufficient if all the jury are agreed on a verdict of manslaughter and it does not matter if some travelled the provocation route and others found that there was an unlawful and dangerous act. This accords with the approach that has been taken by the courts over many years.

"[69] In any event in the present case any jurors who were satisfied beyond reasonable doubt that the appellant intended to kill the deceased or inflict grievous bodily harm, but who were not so satisfied that the Crown had negatived provocation, must have been satisfied that there had been an unlawful and dangerous act. On any view, a knife was presented at close quarters by the appellant to the deceased and the jury rejected self defence."

28 In the present case, the prosecution had put to the jury two different bases on which they might find the appellant guilty of the offence. Given that the alternative bases of responsibility rested on essentially the same factual basis and did not involve materially different issues or consequences, the jury only had to be unanimous verdict in the verdict - it was not necessary that they all arrived at the same result by the same approach or for the same reasons. The essential factor was that they were unanimous in a conclusion that the appellant was, beyond reasonable doubt, guilty of the offence.

29 No error was made by the trial Judge in not directing the jury that they had to be unanimous in the route taken in reaching their verdict, and it is of no legal consequence that, in light of the case presented to them, various members of the jury may have arrived at the same verdict by different routes.

30 PULLIN JA: This is an appeal against conviction.

"(1) On 29 March 2004 at Bassendean Andrew Paul Brian Mouritz assaulted Ullrich Rudi Amesz with intent to do grievous bodily harm to Ullrich Rudi Amesz.

(2) And further that on the same date and at the same place Andrew Paul Brian Mouritz, with intent to maim, disfigure, disable, or do grievous bodily harm to Ullrich Rudi Amesz, unlawfully did grievous bodily harm to Ullrich Rudi Amesz."

32 In the margin of the indictment against the first count there appeared a reference to s 317A(b) of the Criminal Code and against the second, a reference to s 294(1) of the Criminal Code.

33 After a trial before Judge Groves and a jury on 13 and 14 February 2006, the appellant was found not guilty of the two charges set out in the indictment, but instead convicted of the alternative offences of common assault and of unlawfully doing grievous bodily harm. These alternative verdicts were open for reasons mentioned later.

34 The prosecution case was that the appellant worked at West Australian Steel Sales and Trading. The complainant, Mr Amesz, was the Managing Director of that company. On 29 March 2004, Mr Amesz spoke to the appellant in the workshop and terminated the appellant's employment. The appellant threw a piece of steel across the workshop, collected his belongings, went to his car, revved the engine, caused the wheels of the car to spin, drove into the workshop, caused the car to spin around in the workshop, caused the car's wheels to spin again and then headed off at some speed towards the entrance to the yard surrounding the workshop. By now, Mr Amesz had come out of his office and into the driveway to see what was happening. The car, driven by the appellant, hit Mr Amesz, who flew up over the windscreen and onto the ground. This event was made the subject of the first count in the indictment. The appellant stopped his car and accelerated in reverse and in doing so drove over Mr Amesz. Mr Amesz suffered a broken pelvis which amounted to grievous bodily harm as defined in the Code. This event was the subject of the second count. The appellant then drove forward and away out of the property.

35 The appellant gave evidence at the trial. He agreed that he did spin the tyres on his vehicle, that he did drive through the factory door and spin the car through 90 degrees and that he then did travel off "at speed". His evidence was that he saw a figure in front of him and that "I had to swerve left to avoid hitting that figure, which I did" and that he did not recall hitting anyone. He further said that Mr Amesz's 19-year-old son ran up to the side of his car and started kicking the passenger door or trying to open the passenger door and smashed the side mirror (all of which Mr Amesz junior denied) and that he then decided to get out by reversing back, after first looking in the rear-vision mirror. He then said that he felt a small bump. He then drove away and said that he did not realise he had injured anyone until he heard from one of his former workmates soon after.

36 The Judge directed that if the jury found that the vehicle did not strike Mr Amesz, then the verdict must be not guilty on count 1. By their verdict, the jury must therefore have rejected the appellant's evidence and found that the vehicle did strike Mr Amesz.

37 The prosecution alleged that the appellant intended to do grievous bodily harm when he hit Mr Amesz and when his car first reversed over Mr Amesz. The jury by their verdicts of not guilty on the primary charges were not satisfied he had such intention on either occasion.

"Ground 1 - Uncertainty - The verdicts of the jury should be set aside on the grounds that they are unsafe and constitute a miscarriage of justice in that both convictions, being verdicts in the alternative, are bad for uncertainty.

Particulars

Count 1 on the Indictment was Assault with Intent to do Grievous Bodily Harm [s.317A(b)]. The conviction in the alternate of Common Assault [s.313] could have been reached by the jury finding:

(a) that the appellant hit the complainant with his car but did not have the requisite intent or

(b) hit the appellant by accident while driving in a manner that was criminally negligent [s.266], or

(c) did not hit the complainant but intended to do so. (This arises from the definition of assault [s.222] but is unlikely as it was not addressed by counsel or by the Judge.)

Count 2 on the Indictment was With Intent to Maim Did Grievous Bodily Harm [294(1)]. The conviction in the alternate of Doing Grievous Bodily Harm [s.297] could have been reached by the jury finding either

(a) that the appellant deliberately reversed his car over the complainant but did not intend to cause grievous bodily harm, or

(b) reversed over him by accident while driving in a manner that was criminally negligent [s.266].

The Judge did not direct the jury in this regard or inquire as to the basis of their findings and consequently it cannot be assumed that they were unanimous in their verdicts.

Ground 2 - Duplicity - The Judge erred in law in allowing the prosecution, after the close of the evidence, to seek verdicts pursuant to s.266 (criminal negligence) because:

(a) to do so rendered the Indictment non-compliant with s.85(2) of the Criminal Procedure Act 2004 (Indictments, formal requirements etc),

(b) to do so rendered the Indictment dupicitous [sic]

(b) [sic] coming so late in the trial was unfair to the appellant who could not then be said to have had a proper trial on the issues put before the jury.

Ground 3 - Inferences - The Judge erred in law in directing the jury that they could not draw any inference from the lack of prosecution evidence as to the finding [or not finding] of the indicator lamp glass on the ground at the scene of the alleged collision.

Ground 4 - Disclosure The prosecution failed to disclose to the defence expert evidence lead at the trial

Particulars

Motor vehicle damage claimed to be consistent with the impact alleged by the prosecution.

Ground 5 - Expert Evidence - The prosecution led expert evidence from a witness not qualified to give such evidence.

Particulars

Motor vehicle damage claimed to be consistent with the impact alleged by the prosecution given by a police constable attached to the Vehicle Investigation Unit, Traffic and Operation Support, Perth and being a 'Qualified Vehicle Examiner'."

39 Counsel for the appellant in oral submissions said the point about this ground was that the jury could have reached the verdicts they did by "two routes" that is by finding that the appellant had been guilty of criminal negligence or alternatively because there was no accident.

40 Speaking at a high level of generality, the complaint in ground 1 is about "uncertainty". Ground 2 refers to "duplicity".

41 The word "duplicity" is usually employed to refer to a defect in criminal pleading, namely where a count in an indictment charges the accused with having committed more than one offence. See S v The Queen [1989] HCA 66; (1989) 168 CLR 266 at 280 - 281 per Toohey J and Walsh v Tattersall (1996) 188 CLR 77 at 104 per Kirby J. In fact, the word "duplicity" is sometimes used interchangeably with the word "uncertainty". See for example Napier J's judgment in Tucker v Noblet (1924) SASR 326 at 340 which was referred to by Dixon J in Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467 at 488. The word "uncertainty" was used by the Magistrate whose decision was under review in Johnson v Miller (supra), and by Dixon J in that case, to describe a situation where the accused had been charged as licensee of licensed premises that on a Sunday an unnamed person was seen to be coming out of the premises contrary to a section in the local licensing legislation. The evidence that the prosecution proposed to lead however, was that numerous unnamed persons were seen coming out of the premises, some of whom may or may not have had a lawful excuse for being on the premises. The point was argued and decided before any evidence was led because the prosecution disclosed what evidence was to be given. As Dixon J said, the case "presented a peculiarity" in the manner in which it arose because if the "strict course" had been followed, the difficulty would have been disclosed during the hearing and it would then have been incumbent upon the Magistrate to call for an identification of the person whose departure from the hotel was the subject of the charge.

42 It seems that generally, "duplicity" will refer to a defect in the indictment (and if apparent on the face of the indictment, the defect must be objected to before the jury is sworn. See s 590 of the Criminal Code and Bounds v The Queen [2006] HCA 39 per Gleeson CJ, Hayne, Callinan and Crennan JJ). But if the ambiguity or duplicity is latent and only emerges during the hearing of the evidence or if the complaint is that the verdict is uncertain because it may be supported by different facts, then the situation is referred to as "uncertainty".

43 However, nothing turns on whether the word "duplicity" or "uncertainty" is used. Whether the complaint is about "duplicity" or about "uncertainty", as those words are usually employed, the reason why the court will treat either defect as a legal flaw is because of the need for fairness to the accused, to allow the court to rule on the relevance of evidence and to prevent difficulty in the event of a subsequent plea of autrefois convict or acquit. See S v The Queen (supra) at 278, 281 and 284.

44 Before giving further consideration to the appellant's submission in relation to ground 1, the statutory provisions which related to the indictment should be identified. Section 317A(b) referred to in the margin of the indictment against the first count creates the offence of assault with intent to do grievous bodily harm. In relation to the alternative charge, s 313(1) provides that any person who unlawfully assaults another is guilty of an offence.

45 Section 223 states that "an assault is unlawful and constitutes an offence unless it is authorised or justified or excused by law." The only excuse suggested as being relevant in this case was s 23 which provides that "a person is not criminally responsible for an ... event which occurs by accident."

46 Section 266 of the Criminal Code was referred to during the trial and the Judge and both counsel regarded it as applicable to all counts (although the appellant's counsel complained that it was unfair for the prosecution to rely on it). Section 266 of the Code reads:

"It is the duty of every person who has in his charge or under his control anything, whether living or inanimate, and whether moving or stationary, of such a nature that, in the absence of care or precaution in its use or management, the life, safety, or health of any person may be endangered, to use reasonable care and take reasonable precautions to avoid such danger; and he is held to have caused any consequences which result to the life or health of any person by reason of any omission to perform that duty."

47 It is pertinent to note that s 23 does not apply if there has been an omission to perform the duty in s 266 because of the opening words of s 23 which read "Subject to the express provisions of this Code relating to negligent acts and omissions". Section 266 is one of those provisions. See Evgeniou v The Queen (1964) 37 ALJR 508 at 509.

48 Section 266 imposes a duty ("a duty in gross": Callaghan v The Queen [1952] HCA 55; (1952) 87 CLR 115 at 119) and then states (after the semicolon) the statutory consequence of an omission to perform the duty. The consequence is that the person who omits to perform the duty is "held" to have caused "any consequences which result to the life or health of any person by reason of any omission to perform that duty". In a manslaughter case the section will be relevant (see for example Evgeniou v The Queen (supra)), because killing is an element or constituent of the charge. To kill is to cause the death of a person and if the accused "omits" to perform the s 266 duty, then the accused is "held" to have caused the death of the person which is a "consequence" of the type referred to in s 266. The section is also potentially relevant in a case of unlawfully doing grievous bodily harm (see Houghton v The Queen [2004] WASCA 20; (2004) 28 WAR 399).

49 However, in my opinion section 266 has no relevance in relation to an assault charge. In an assault charge, is it not an element or constituent of the offence that there is any consequence to the life or health of the victim. Further, s 266 cannot be used to prove that the assault was "unlawful" because any assault is unlawful "and constitutes an offence" as s 223 says "unless it is authorised or justified or excused by law". In relation to count 1, the trial Judge directed the jury to consider whether the prosecution had proved that there had been a breach of s 266. Although I consider that this was an error, no point was taken about this at trial (other than the unfairness point), no ground of appeal contends this was an error, and it was not alleged by the appellant in oral submissions to be an error even when the views set out above were put to counsel. My opinion that s 266 has no application to an assault charge is therefore obiter and not informed by any submissions of the parties. The opinion has been expressed however, to prevent these reasons being treated as authority for the proposition that s 266 is applicable to an assault charge.

50 However, I will proceed to consider the appellant's submissions by assuming that (contrary to my view) s 266 may apply to an assault charge. In his oral submissions, counsel submitted that there was uncertainty in relation to the first count because (he contended) half the jury may have reasoned to a verdict of guilty in one way and the other half in another way. Counsel explained this when he said (t/s 11):

"... the way the crown [sic] case was presented, it was a deliberate running down. So there's an intention to hit him, not to cause a particular injury but an intention to drive at him and hit him and that's the intention I'm talking about, whereas the other six [members of the jury] might say, 'He wasn't intending anything at all. He was just driving negligently to a criminal basis and he hit him'."

51 This is a reference to the prosecution case which was, in effect, that the assault was unlawful because it was not an accident, or alternatively was caused by the appellant's criminal negligence. The suggestion in counsel's oral submission is that it is not permissible to leave accident and criminal negligence to the jury because of uncertainty. If that were so, then it will never be permissible to allow them as alternatives. However, in Griffiths v The Queen [1994] HCA 55; (1994) 69 ALJR 77 at 79, Brennan, Dawson and Gaudron JJ made it clear that they could be left as alternatives when they said:

"If the appellant in fact fired the bullet which entered the body of John Apps and thereby caused his death, the appellant's criminal responsibility for manslaughter depended on proof that - (i) the act of firing the bullet was willed or voluntary, that is, the act was not done independently of the exercise of the appellant's will (Timbu Kolian v R [1968] HCA 66; (1968) 119 CLR 47 at 53, 61-3; R v Falconer[1990] HCA 49; (1990) 171 CLR 30 at 40; [1990] HCA 49; 96 ALR 545) (s 23, first limb) and the death of the deceased did not occur by accident, that is, it was a foreseen or foreseeable result of that act (Vallance v R [1961] HCA 42; (1961) 108 CLR 56) (s 23, second limb) or, alternatively, (ii) that the death of John Apps was caused by criminal negligence (s 289). These were elements of the offence charged. The crime of manslaughter can be committed either by a voluntary act which causes death in circumstances which do not amount to murder (s 303) or by criminal negligence. Although the trial judge thought that careless handling of the rifle was the most likely explanation of the appellant's killing of John Apps, the alternative bases for conviction of manslaughter were issues for the jury. No particulars were asked for or given which confined the issues for the jury's determination to one basis or the other."

52 If the alternatives were open in the manslaughter case in Griffiths, then if (contrary to my view) s 266 is relevant to an assault charge, it is permissible to leave the same alternatives to the jury.

53 It was not necessary in the circumstances of this case (see R v Cramp [1999] NSWCCA 324; (1999) 30 MVR 9) to direct the jury that they must be unanimous in the path by which they reached their verdict of guilty, although it was necessary to direct them as usual (which the trial Judge did) that they be unanimous as to their verdict. Cramp's case has been cited with approval in other New South Wales Court of Criminal Appeal cases and in other State jurisdictions. See for example Dally [2000] NSWCCA 162; (2000) 115 A Crim R 582; R v Spathis [2001] NSWCCA 476; Walsh [2002] VSCA 98; (2002) 131 A Crim R 299; Georgiadis v The Queen [2002] TASSC 58; (2002) 11 Tas R 137; R v Glattback [2004] QCA 356. See also the earlier case of R v Leivers & Ballinger [1998] QCA 99; [1999] 1 Qd R 649.

54 In relation to the second count, the appellant was convicted of the alternative offence in s 297 of the Criminal Code which reads "any person who unlawfully does grievous bodily harm to another is guilty of a crime ..."

55 In Houghton v The Queen (supra) at [99], Steytler and Wheeler JJ agreed with Murray J when he said in his dissenting judgment that, while in relation to some offences the Criminal Code the meaning of the word "unlawful" has been expressly provided for (to mean "not authorised, justified or excused by law", as in the case of assault), in relation to other offences the meaning is provided by the context in which the word is used. In the case of s 297 the word is not defined. In that case the word "unlawful" means that the grievous bodily harm is done by a willed act contrary to law and not excused. See Kuczynski v The Queen (1989) 2 WAR 316 at 321 and Houghton (supra) at [121]. It is therefore necessary to find some provision which makes the willed act causing grievous bodily harm unlawful. In this case doing grievous bodily harm would be unlawful if it occurred as a result of an unlawful assault, or if the appellant omitted to perform the duty in s 266: see Houghton at [126]. If assault was the source of the unlawfulness, then accident, if raised, would have to be negatived by the prosecution. Accident was raised and the trial Judge therefore directed the jury to consider accident and criminal negligence (AB 263). His Honour also referred to the non-applicability of accident if criminal negligence was proven (by reason of the introductory words of s 23) when his Honour said correctly in his summing up that "if you fail to use reasonable care and take reasonable precaution then you can't say it was an accident." I refer once again to the decision of the High Court in Griffiths which makes it clear that it is permissible to leave to the jury the consideration of accident, or alternatively, criminal negligence in an appropriate case.

56 I should mention that counsel for the appellant placed reliance on R v Franco ( [2003] SASC 140; 2003) 139 A Crim R 228 without reading from the case. A reading of that decision reveals that the trial Judge directed the jury on a path by which a conviction could be found based on evidence given by the co-accused which was not relied on by the prosecution and where the appellant was given no warning that the Judge would direct in that way. The conviction was set aside having regard to considerations of fairness and where the appellant had been prejudiced. The case affords no assistance to the appellant in this case.

57 The particulars to ground 1 provide no support for the contention that the verdicts were uncertain. Particular (c) can be ignored because, as I have explained, the jury must have rejected the appellant's evidence that his car did not hit Mr Amesz. As to particulars (a) and (b) in relation to both counts, the fact that the alternatives of accident and criminal negligence were left to the jury to consider was permissible at law. I refer again to Griffiths (supra), Cramp and the other authorities relating to this point and referred to above. I feel compelled to record that neither counsel referred the Court to any of these authorities.

59 Ground 2 raises two points. The first is that the Judge erred in law in allowing the prosecution after the close of evidence "to seek verdicts pursuant to s 266" and that to do so rendered the indictment non-compliant with s 85(2) of the Criminal Procedure Act, which rendered the indictment duplicitous and secondly, that "coming so late in the trial" this was unfair to the appellant.

60 In relation to the first point, I should first mention that there is no question of duplicity or uncertainty in relation to the alternative offences of which the appellant was convicted. This is because of express provisions in the Criminal Code. Section 10A(1) provides that a person charged with an offence cannot be convicted by the court dealing with the charge of any other offence instead of that offence, unless (a) the accused is charged with the other offences an alternative to that offence; or (b) this chapter provides otherwise. The chapter does provide otherwise in s 10B(2) which states that if a person is charged with an offence (offence A) whether or not on indictment, the person, instead of being convicted as charged, may be convicted of any alternative offence that is provided for offence A. The alternative charges of which the appellant was convicted in this case in relation to each count, were provided for in s 317A and s 294.

61 The appellant contended that when the prosecution informed the trial Judge that it relied on s 266, this created a separate offence. In Callaghan (supra) at 119, Dixon CJ, Webb, Fullagar and Kitto JJ said that "breach of the duty of care imposed by the section becomes one of the constituents of the crime of manslaughter." See also the passage from Griffiths (supra) quoted above. As I have already explained, in a manslaughter charge it is necessary to prove that the accused killed the victim. It is necessary in proving that the accused killed the victim, to prove that the accused caused the death of the victim. Section 266 provides (after the semicolon) a legal consequence if the accused omits to perform the duty. The legal consequence is that a person is to be "held" to have caused the consequence which results to the life or health of the person by reason of the omission. Thus if an omission to perform the duty is shown, then the prosecution, relying on s 266 may prove that the accused caused the death of the victim. In the case of the offence of unlawfully doing bodily harm, the section provides for proof of doing grievous bodily harm and the unlawfulness of the act which causes it. The appellant's submission that s 266 creates an independent offence must be rejected.

62 The appellant refers to s 85(2) of the Criminal Procedure Act 2004. Paragraph (b) of that subsection states that an indictment must comply with Sch 1, Div 2. Clause 5 of Sch 1, Div 2 relevantly provides:

"(1) A charge in a prosecution notice or indictment must inform the accused of the alleged offence in enough detail to enable the accused to understand and defend the charge, and in particular must -

(a) describe the offence with reasonable clarity;

(b) identify the written law and the provision of it that creates the offence; ...

(a) it is sufficient to describe an offence in the words of the written law that creates it;

(b) if that written law states that alternative acts, omissions, capacities, or intentions, constitute the offence, the alternatives may be set out;

(c) a charge is not defective only because an element of the offence is not stated; and

(d) it is not necessary to allege -

(i) any matter, or any particulars as to a person or thing, that need not be proved; or

(ii) the means or thing used to do an act constituting an offence unless the means or thing is an element of the offence."

63 The appellant contends that the indictment did not refer to s 266. However, in view of the conclusion above that s 266 does not create a separate offence it was not necessary for the indictment to do so. I would also note that cl 5(2)(d)(ii) expressly provides that it is not necessary to allege the means or thing (in this case the car) used to do an act constituting the offence.

65 The second aspect of ground 2, which is that it was "unfair" to the appellant because the point was raised "so late in the trial" has no merit. Counsel for the appellant was told before trial by counsel for the prosecution that reliance was to be placed on s 266. Counsel for the appellant asked the prosecutor not to refer in opening to s 266 and so no such reference was made. However, the evidence pointing to criminally negligent driving of the vehicle was given at trial and fully tested in cross-examination. When all the evidence was led, counsel for the prosecution asked his Honour to give directions to the jury about s 266 and this was done. There was no application for an adjournment and there is no suggestion that the trial would have differed in any way or that different evidence would have been led, had the jury been formally told about reliance on s 266 at some earlier stage in the trial. In the absence of any suggestion that the appellant was materially prejudiced, this aspect of ground 2 must fail.

66 Although there was some conflicting evidence about what part of the appellant's car struck Mr Amesz, the prosecution contended that the jury should accept that the front left-hand side of the vehicle struck Mr Amesz. The prosecution provided to the appellant a vehicle examination report which revealed that on Friday, 2 April 2004, Senior Constable Harston examined the vehicle. In that report he stated, under the heading "Damage":

"This vehicle has sustained light impact damage to the front left.

The left front indicator is smashed (bumper mounted).

The left guard front section has been forced inwards (appears old damage rust evidence).

The left guard rear edge is forced inwards and scratched (appears recent damage).

The left exterior mirror is cracked with outer one-third of the mirror glass dislodged and missing.

Numerous minor dents and scratches to all remaining panels (all appear old damage)."

67 No witness to the incident gave evidence that the indicator lamp glass was broken when the vehicle struck Mr Amesz.

68 When Senior Constable Harston gave evidence, he was referred to the report and asked:

"You have referred to the fact that the vehicle had sustained light impact damage to the front left?---Yes.

And I think you have referred certainly to the fender - sorry, you have referred to the panel damage. What, if any, recent damage was there to the left front area?---The left front indicator was smashed. That, from my estimate, would be recent, appeared to be recent."

69 Senior Constable Harson was then cross-examined by counsel for the appellant. He was asked why he thought the damage to the left front indicator was recent, and he explained that normally when something like that had been broken for a period of time, dirt and corrosion start on the fixtures inside the fitting and there was none evident. He also said that he did not believe that the damage could be "old damage".

70 It is also relevant to refer to a plan of the area which was prepared by the police. This was prepared on 5 April 2004, which was about a week after the offence. There was nothing drawn on the plan showing the location of any broken indicator lamp glass on the ground at the scene. However, there was no evidence that the police had carried out a search for such indicator glass.

71 With that background, I can then turn to the passage in his Honour's summing up which is the subject of complaint. His Honour said:

"The accused denies that there was any contact between vehicle and Mr Amesz in the first incident, count 1. Mr Amesz ran across the front. He swerved, Mr Mouritz swerved and the figure was out of the way and was not struck by the vehicle. The damage to the vehicle it is said was old damage. There was no evidence of the indicator lamp glass on the ground. There's no evidence about that, so you can't draw any conclusion from that." (AB 267)

72 The appellant contends that his Honour should have directed the jury that they could infer from the fact there was no indicator lamp glass on the ground that the indicator lamp glass was not broken by the impact and that from this, it followed that there was evidence to support the appellant's evidence that he did not strike Mr Amesz with the vehicle.

73 In my opinion, his Honour's direction was entirely correct. There was no evidence about whether or not there was glass on the ground. No-one looked for it and that absence of evidence cannot be elevated to evidence that there was no glass on the ground. Ground 3 should be dismissed.

Ground 4 : Non-disclosure of prosecution expert evidence

74 The expert evidence that the broken indicator was "recent" was led at trial. The suggestion that the prosecution failed to disclose that expert evidence is therefore demonstrably untrue. If the ground is meant to be read as suggesting that the disclosure was late and that the appellant was prejudiced because of the late disclosure, then it would have been open to the appellant to ask for an adjournment in order to consider the evidence. No adjournment was sought. No prejudice is identified. There has been no miscarriage of justice. This ground must be dismissed.

75 The appellant contends that Senior Constable Harson's evidence about the "recent" damage to the indicator lamp, was opinion evidence from a person not qualified to give such evidence. The time for objecting to the evidence was at the trial. No objection was made and in fact the appellant's counsel cross-examined the witness as to the foundation for his opinion. This ground should be dismissed.

76 All grounds fail and the appeal must therefore be dismissed.

• Ground 1 : Uncertainty
• Ground 2
• Ground 3: Inference direction
• Ground 4 : Non-disclosure of prosecution expert evidence
• Ground 5 : Expert evidence
• Result